Australia considers next move after refugee decision

Australia's Attorney-General Nicola Roxon says the government will reassess the case of the Sri Lankan man who won a High Court victory after being given a negative security assessment.

The 36-year-old Sri Lankan man had been found to be a refugee, but was refused a protection visa after the assessment by state intelligence agency, ASIO.

He has been detained for the past three years and is one of 55 other refugees in a similar situation.

He took the matter to the High Court, which ruled on Friday that the public interest test, which is used to reject visa applications on security grounds, is invalid because it is inconsistent with Australia's Migration Act.

The refugee's lawyers say he should be released as soon as possible, along with all other refugees who are being detained indefinitely.

But Ms Roxon says the man will remain in detention while Immigration Minister Chris Bowen and the Department of Immigration make a new decision on his application for a protection visa.

"The case has upheld the process that ASIO has undertaken for its adverse security assessment, but it found one of the migration regulations to be invalid. That means that the particular plaintiff has to have his case reassessed," she told 7.30.

"The consequences for others will depend on circumstances for each of those, and of course the Government is carefully considering and will quickly consider implications for the 50 or so people who are in similar circumstances."

She says the man can still have the ASIO assessment used against him as he applies for a protection visa.

"What the decision has declared invalid is a migration regulation that says you are not allowed under any circumstances to give a visa to someone who has an adverse security assessment," she said.

"The judges say the decision now has to be remade with respect to this one individual and they explicitly say by a majority that he is to remain in detention while that is done."

Transparent review process

Ms Roxon says the government has previously indicated it would put in place a more transparent review process for refugees held in detention because they have a negative security assessment.

"We're just considering the implications of this case to see exactly what that review process should look like and we'll be able to make some announcements shortly on that," she said.

"There is a lot of reasoning that will be relevant to any remedy that might be applied. I think it's too early, just a couple of hours after the decision's been handed down, to say which particular consequences flow from it."

She denied the government's policy agenda was being thwarted by a series of High Court challenges.

"We've had a win in four cases in migration matters just in the last month - none of which have been reported in the media," she said.

"It is a matter that's been litigated extensively. Obviously we win some, we lose some; obviously these are important issues that affect people's liberty.

"As a government we're always determined to make sure that we respect our obligations under the refugee convention but that we also take seriously our obligations in national security to protect the community from some people that may be a risk. That's a very difficult balancing act."

The refugee's lawyer, David Mann, says the decision was a significant victory for his client.

"Our client has now been detained for almost three years in circumstances which have caused him tremendous and lasting damage," he said.

"It's an absolute tragedy. He should be granted a visa urgently, a refugee visa, and be granted his freedom."

Key arguments dismissed

While overall it is a win for refugee advocates, the High Court did not rule in their favour on two of the key arguments the plaintiff made in the case.

The plaintiff argued ASIO had an obligation to accord natural justice to him by allowing an opportunity to challenge the security assessment.

But the court found that the plaintiff was given procedural fairness because he was given an opportunity to address issues in an interview with ASIO.

The validity of indefinite detention was challenged, but the court ruled the continuing detention of the plaintiff was valid for the purpose of assessing his application.

The question now is how the Australian Government can get around the ruling.

Professor of international law at the University of Sydney, Ben Saul, says the government's only way around this would be to legislate to amend the Migration Act.

"I don't see any way that they could simply reissue a regulation to correct this problem," he told PM.

"They'd really need agreement in the Parliament in both houses to amend the legislation itself."

Professor Saul says amending the Migration Act to apply a wide ranging national security test, like the one that is in place now, could open a whole new can of worms.

"Even if you fix the national security test, there's still the problem in the background of whether indefinite detention is lawful," he said.

"Some of the judges in this decision today did say some things about this, casting doubt on whether indefinite detention would be lawful."

Left in limbo

Professor Saul says it is back to square one for the other refugees in detention with adverse security assessments.

"The government's got to go back now, reconsider their protection visa application on the basis of some fixed-up national security tests...the shape of which is yet to be determined by the Parliament," he said.

"It kind of leaves these refugees in limbo. On the one hand it's wiped out their current adverse security assessment but it takes them back to waiting again for a new security assessment to be made under whatever new scheme they come up with."

Greens Senator Sarah Hanson-Young says she will introduce legislation to address the situation next week.

"The bill that I will bring to the Parliament next week will put forward a review mechanism and rule out the indefinite detention of refugees because it is inhumane and it is illegal," she said.

Sri Lankan-born Yogachandran Rahavan and his family are among those indefinitely detained in Australia.

He was granted refugee status after he came to Christmas Island by boat, but a negative security assessment from ASIO means he and his wife and their three children have been stuck in detention at Sydney's Villawood centre for the past three years.

He says his children, aged eight, five and two, struggle with their situation.

"All the times they are asking when are we going out? When are we going out? As a parent we don't have any answers to tell them," he said.

"Those are the questions also put us into the lap of depression. It's difficult to come out sometimes. If we know something, we can tell something to them but how can we tell the wrong answer to my kids."

Mr Rahavan can only speculate as to the reasons why he and his wife were given a negative security assessment.

"We had lived in north part of Sri Lanka that is controlled by LTTE (Liberation Tigers of Tamil Eelam) for more than 15 years," he said.

"Fifteen years they run the shadow government, we were under there and pay the taxes. I think that's why we got a negative assessment. I have no any ideas why we got a negative assessment and why we are here for three years."